Religion & The Supreme Court
 Five Catholics. Two Protestants. Two Jews. Do the religious beliefs of justices influence their legal opinions?
Moses, Solomon and Muhammad stand side by side with historical legal giants such as Hammurabi, Solon and Napoleon on the marble friezes in the main chamber of the U.S. Supreme Court, symbolizing religion’s influence on the development of American legal thinking. Yet, until the 1940s, the Supreme Court generally kept a studied distance from issues of church and state.
During the Court’s first session in 1790, the subject of religion barely came up. “Newspaper accounts from the time indicate that while some U.S. courts in New England in the late 18th and early 19th centuries began their sessions with prayer, the highest court did not,” says Court historian Natalie Wexler, an editor of The Documentary History of the United States 1789-1800. In fact, the only sectarian matter to come before the Court in its first century and a half was an 1886 case involving taxes on a church-owned commercial property.
While the number of justices on the Court varied (six in 1790, seven in 1879, nine in 1839, 10 in 1860, eight in 1869, nine in 1869 and since), their religion didn’t. All were Protestants like the majority of Americans. When President Andrew Jackson nominated Roger Taney as the first Roman Catholic justice in 1835, he created what became known as the “Catholic seat,” which exists to this day.
In 1916, 81 years after Taney’s appointment, Louis Brandeis became the first Jew nominated to the Court. Scholars generally agree that President Woodrow Wilson selected Brandeis not because of his religion but because of his respect for the judge’s intellect. Even his opponents were more concerned about his “political radicalism” than the fact that he was Jewish. But once on the Court, Brandeis was directly confronted with anti-Semitism. He served alongside James Clark McReynolds, who refused to speak with him for three years and “practically never” addressed him thereafter, according to The Journal of Supreme Court History. McReynolds, for instance, told President William Howard Taft in 1921 that he could not join the Court on a ceremonial trip because, “As you know, I am not always to be found where there is a Hebrew aboard.” In 1932, when Benjamin Cardozo was sworn in, McReynolds muttered, “Another one!” “My God, another Jew on the Court,” he exclaimed when Justice Felix Frankfurter replaced Brandeis in 1939.
After Frankfurter, Arthur Goldberg and Abe Fortas served on the Court, marking 43 consecutive years in which Jews occupied at least one seat. After Fortas stepped down under a cloud of ethics accusations in 1969, what was understood as “the Jewish seat” remained vacant until the 1993 appointment of Ruth Bader Ginsburg.
With the confirmation of Stephen Breyer, another Jew, one year later, religious minorities for the first time constituted a majority of the Supreme Court’s members. Sitting with Ginsburg and Breyer were Antonin Scalia, Anthony Kennedy, both Catholics, and Clarence Thomas, the Court’s second African American, who although born a Baptist, became a Catholic as a boy, later switched to the Episcopal Church, and returned to Catholicism in 1996. A fourth Catholic, John Roberts, became chief justice in 2005, and a fifth Catholic, Samuel Alito, created an unprecedented Catholic majority when he joined the Court in 2006.
Historically, the political philosophies of nominees have always undergone extensive scrutiny, but the potential impact of personal religious beliefs has received less attention. In recent years as religion has become entangled in partisan politics, new interest has emerged.
Early in 2005, with George W. Bush’s nomination of White House Counsel Harriet Miers for a vacant seat, the question of religion broke into the open, much as it had surfaced in 1960 during the presidential campaign of John F. Kennedy, who became the nation’s first Catholic president. In extolling Miers’ conservative virtues, Bush remarked, “Part of Harriet Miers’ life is her religion.” That same day, then-presidential advisor Karl Rove similarly sought to reassure the Republicans’ social-conservative base when he explicitly coupled Miers’ evangelical beliefs with support for a pro-life stance. Liberals decried the exchange as evidence of a new religious litmus test in violation of Article VI of the Constitution: “No religious test shall ever be required as a qualification to any office or public trust under the United States.”
Later that same year, the media reported that Senator Dick Durbin, a Democrat and a Catholic himself, privately asked Roberts if Catholicism would influence his work on the Court. A Boston Globe reporter observed that although Durbin’s office denied the account, conservatives complained that “Democrats are imposing a bigoted and unlawful ‘religious test’ to keep ‘people of faith’ off the federal bench,” thereby violating Article VI.
Such political diatribes notwithstanding, tracking the influence of a justice’s religion and separating faith from political and legal philosophy are challenging tasks. The justices themselves have generally denied that the tenets of specific religions dictate their positions or judicial inclinations. Antonin Scalia, for example, told a 2008 Villanova University symposium, “I am hard-pressed to tell you of a single opinion of mine that would come out differently if I were not Catholic.” Ruth Bader Ginsburg, who frequently disagrees with Scalia, fell firmly into line with him on this one, saying in January 2008 that, if the Jews who preceded her on the Court were known as “Jewish justices,” she and Breyer, by contrast “are justices who happen to be Jews.”
Still, the present Court’s makeup invites the usually unasked question relevant in a presidential election year when future appointments hang in the balance: Does the religion of Supreme Court justices play a role in their jurisprudence? Moment turns to a group of well-respected jurists, historians and legal scholars for their insights.—Joan Alpert
Jeffrey Rosen is a professor of law at The George Washington University and the legal affairs editor of The New Republic. He has written on the Supreme Court and other legal matters for the New York Times Magazine, The Atlantic Monthly and The New Yorker. His most recent book is The Supreme Court: The Personalities and Rivalries that Defined America.
Religious background is one of several elements of personality and temperament that may affect leadership styles, the way that a justice interacts with colleagues, and the way that he pursues his agenda, but it does not guarantee that he will vote one way or another. So religious influence is—like pornography—hard to define. Perhaps you know it when you see it.
Justice Antonin Scalia has written extensively that his own Catholic faith could never influence his jurisprudence and if he thought for a moment that it might, he would resign. On the other hand, Justice Stephen Breyer has reached a different conclusion. At a forum earlier this year in Washington, DC, an audience member asked Breyer whether his religion influenced his jurisprudence. He said that he didn’t see how it couldn’t because it shapes part of who he is; just as other aspects of his background influence his worldview, so his religious background does, too. I think that he stressed that it’s not a question of leading him to vote one way or another on individual cases but that his respect for close legal argumentation is connected perhaps to his Jewish background.
There’s a dramatic example of a case where religious beliefs might have influenced a judge’s position, and that’s Buck v. Bell, where the Supreme Court upheld eugenics laws in 1927. In his infamous majority opinion, Justice Oliver Wendell Holmes said that three generations of imbeciles is enough, and he enthusiastically upheld dreadful laws that mandated the sterilization of so-called imbeciles. The only dissenter in the case was Justice Pierce Butler, a devout Catholic. And it was not a coincidence, because at the time conservative Catholics as well as conservative Protestants and Jews were the only vocal religious opponents of eugenics laws. Butler mirrored the experience of other Catholics in recoiling at these illiberal laws as violations of human dignity.
Today, we’re at an odd moment in the Supreme Court’s history where the justices are revealing many aspects of their lives in unprecedented ways. Scalia not only talks about his religion, but also recently went on 60 Minutes to talk about his childhood. The justices are giving interviews in ways that they wouldn’t have 10 years earlier, so it’s not surprising that all aspects of their identity—including religion, childhood backgrounds, their friends, their youthful politics—are suddenly discussed.
It’s not that I believe that justices should never discuss their religion, but they have to be just as circumspect about religion as they are in other subjects. Justice Clarence Thomas is a cautionary tale for me. In his memoir and in other comments that Thomas has made about his religion, one has the sense of an angry man who is not eager to forgive enemies and who is using religion not only as solace but also as a polarizing device. More circumspection would have served him better. On the other hand, others have had different reactions to his bestseller. Many of my students liked the book because after reading it they felt that they understood Thomas better.
There has never been a time when religion has been banished either from the nomination process or the Court itself. Many of our greatest justices have been openly religious. The first John Marshall Harlan was said to go to bed every night with one hand on the Bible and the other on the Constitution—and therefore to sleep the sweet sleep of the righteous. And he used religious imagery in his great opinions striking down segregation and defending the rights of African Americans—so it would be unrealistic to try to cordon this area off entirely. The difficulty is knowing what to make of it in a multicultural age.
George W. Bush’s statements about Supreme Court nominee Harriet Miers’ evangelical beliefs seemed inappropriate because he was treating a potential justice like a political candidate. Obviously what he was trying to do was reassure his conservative base that this nominee whom they didn’t know very well would vote against upholding Roe v. Wade. This was inappropriate on several levels. First, Bush may have been wrong: The fact that she had personal beliefs about abortion shaped by her religion might not have affected her jurisprudence, and it certainly shouldn’t have, since the goal of the judge is to separate one’s personal beliefs from one’s jurisprudential conclusions. On the other hand, our confirmation campaigns have become increasingly politicized, so trying to draw boundaries about what’s appropriate and what isn’t may be doomed.
Can laws be based on morality without favoring one religion over another? This is one of the most contested questions in constitutional law right now, ever since Justice Anthony Kennedy, writing for the Court, struck down sodomy laws in Lawrence v. Texas in 2003, on the grounds that liberty and personal autonomy should be broadly protected. That led Scalia to warn dramatically that this means the end of all morals legislation. He suggested that in light of Kennedy’s opinion, laws based on moral disapproval could no longer be considered consistent with the Constitution. For Scalia this was unthinkable because he believes that laws have always been based on morality—including, in many cases, religious morality. Scalia and other conservatives would reject the ideas that you need non-religious justifications for moral legislation or that there’s anything wrong with moral legislation in the first place. The Supreme Court is very closely divided now between justices who are sympathetic towards moral legislation and those who are suspicious of it—and it’s not quite clear how this battle will be resolved. [return to top]
Douglas Kmiec holds the Caruso Family Chair in Constitutional Law at Pepperdine Law School. He previously served as dean and professor of law at The Catholic University of America, and was on the law faculty at the University of Notre Dame. Kmiec served as constitutional legal counsel to Presidents Ronald Reagan and George H.W. Bush from 1985 to 1989. He writes a syndicated column for the Catholic News Service, is a frequent contributor to the Los Angeles Times and the Wall Street Journal and is co-author of The American Constitutional Order, Individual Rights and the American Constitution and The History, Structure and Philosophy of the American Constitution.
The Constitution states that there should be no religious test for purposes of public service. However, I think religion matters in the sense that people of faith have often made certain commitments to community and take those commitments seriously: One comes to understand one’s nature through one’s religion, and obligations to others through one’s religion. Believers of a religious tradition tell us something about themselves when that is disclosed as an aspect of their background. But observing the constitutional precept that there should not be any particular religious oath and its historical meaning (which, of course, was taking umbrage at the favoritism for Anglicanism and the like), we shouldn’t give a person of faith any special advantage or disadvantage in the constitutional process.
At the same time, being culturally honest, if I were a member of the Senate and someone told me that he was of a faith tradition, I would view that as a positive in the same way that I would think that a person’s continuous employment before seeking a job on the Supreme Court would be a good thing, too.
I also think that a person should feel comfortable speaking about faith if asked about it. During Chief Justice John Roberts’ confirmation process, Senator Dick Durbin was criticized for asking Roberts about his Catholicism. A senator has every right to ask such questions because the Constitution does not limit the kind of inquiries a senator can make. Such inquiries should be made with civility and respect for the nominee’s religious tradition.
I have one small concern about an instance where a nominee’s religious traditions were not questioned. Justice Hugo Black came to the Court as a former leader of the Ku Klux Klan in Alabama. I think it was regrettable that this extreme association was not known at the time of his confirmation. There are small hints in some of his early opinions that suggest a closed-mindedness toward particular traditions, especially Catholicism, which was often a KKK target.
In the past, whether a nominee was Catholic or Jewish was a factor in the selection of Supreme Court justices, and I don’t think those days are high water marks in our history. But, of course, several religions (for example, Buddhism) have never been represented on the Court. Occasionally, I hear an argument (but I would need much more study to begin to evaluate its merits) that Asian religions lack an understanding of a creator in the sense that the founders, Jefferson in particular, used the term in the Declaration of Independence. So there’s been a long-standing philosophical question—not well answered in my mind—about whether there is an equivalent understanding of rights as being inalienable in the dignity of the human person. The Buddhist tradition has more of a sense of contemplation within the human mind as opposed to obligation to a transcendent being. That’s frankly different than what our religious tradition was at the time of the founding, and I can see someone asking a legitimate question about that.
Although five Catholics are now on the Court and there have been many five-to-four decisions, there is no relationship between those decisions and their common religion. Since the recent additions of Roberts and Justice Samuel Alito, the Court has taken only one religion case and it’s been tangential: Hein v. Freedom From Religion Foundation [June 2007], a tax case. Not an unimportant case, but it was more a procedural matter than a direct inquiry into the substance of the meaning of the religion clause. The Court has taken no free exercise or establishment of religion cases, and those cases are out there.
There’s no reason that one’s religion and the Constitution ever have to conflict, certainly not hypothetically. Justice Antonin Scalia has discussed a potential conflict between the Court and the church. If his church categorically directed that the death sentence was inappropriate as a matter of faith and morals, he has said, he could not then participate on the Court, because he would put faith first. I think that’s probably the right outcome given his premises, but I wrestle a bit with those premises. I think that he’s mistaken in the way he interprets the Eighth Amendment [which protects defendants from cruel and unusual punishment] and, therefore, he creates a conflict where one doesn’t necessarily need to exist.
On the other hand, I think even the venerable Justice Scalia has worked out the issue of abortion and the church in his ethical framework, which is that the justices are not responsible for the laws they are asked to interpret. The allowance of the democratic process does not demand justices’ agreement; it’s merely a matter of performing judicial duties. I don’t see the abortion issue as presenting—and neither has Scalia—a kind of ultimate conflict. His problem with the death penalty is that he would have to sign the death warrant and he views that as involving him directly as the final decisionmaker in the imposition of a capital sentence.
There’s no distinction between religion and morality. The distinction is between who is responsible for an act with moral implications and religion. The way in which moral actions would be judged in the framework of Scalia’s faith and my own would be to ask questions about the nature of the act, the nature of the intent of the actor and the surrounding circumstances. Whereas with regard to abortion, first, the majority of the people have made a decision about the law. Second, there’s another moral actor, namely the woman, who has been authorized to make the decision; and the justice is not becoming morally complicit in the same way. [return to top]
Abner Joseph Mikva was an Illinois Democratic member of the House of Representatives from 1969 to 1973 and again from 1975 to 1979. From 1979 to 1994, he was a judge on the United States Court of Appeals for the District of Columbia Circuit, becoming chief judge from 1991 to 1994. The following year, he served as counsel to President William J. Clinton. During his career, he clerked for Supreme Court Justice Sherman Minton, served as a member of the Illinois state legislature and was a professor at Northwestern University School of Law and the University of Chicago.
I have never thought that religion per se makes the difference, because we’ve had some very progressive Catholic justices, like Justices William Brennan and Frank Murphy. Similarly, the Jews on the Court have tended to be progressive, but that’s because they come from the more progressive parts of Judaism. If you appointed a rigid Orthodox Jew, you probably wouldn’t have gotten the same result, but people like Louis Brandeis or Benjamin Cardozo—almost backsliders, religiously—really brought in progressive views. Religion was a part of their views, but their views transcended religion.
For Justice Ruth Ginsburg, her religion was a part of her growing up, but I don’t think it is an important piece of what dictates her views, and Justice Stephen Breyer probably had less yiddishkeit in his growing up. But then they come out the same in most of their jurisprudence, not because they’re Jewish, but they both happen to be Jewish.
The religious-political conservatives are very doctrinaire about their religion. Justice Antonin Scalia is a believer in conservative theology, and Justice Clarence Thomas has moved there. They see things through a very narrow prism. They are resistant to change. The whole field of choice is affected by their religiosity. And, probably to a lesser degree, by Justice Samuel Alito’s and Justice John Roberts’.
To the extent that there are liberal and conservative Catholics, I would say they are conservative. Religion played a part in getting them to their conservative politics.
The thing about Catholicism over the years is that, more than the other religions, it has resisted change. Yes, it has had to change, but the change has been slower and more painful. [return to top]
Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law. She has written Justice Denied: What America Must Do to Protect its Children and God vs the Gavel: Religion and the Rule of Law, is a bi-monthly columnist on constitutional issues for writ.news.findlaw.com and is a contributor to the Huffington Post. Hamilton clerked for Supreme Court Justice Sandra Day O’Connor.
I think the faith of the justice is far less important than the justice’s attitude toward religion in society. Do the justices see the union of church and state as a danger or a value? That’s true not only on the current Court, but in the history of the Court. Today, more liberal justices view a union of church and state as a danger, while more conservative justices treat it as either benign or valuable. The latter have moved the Court away from the concept of the separation of church and state.
It’s not because there are five Catholics on the Court that you get this most recent trend; it’s because there are five conservatives, who are part of a conservative era, favoring religion accompanied by less concern about the separation of church and state, if not outright hostility to it.
The conservatives have focused instead on whether government is coercing religious practice. Using this reasoning, the posting by the government of the Ten Commandments is fine, government funding for parochial school computers is fine, and vouchers for religious schooling is fine. All of these are a result of the worldview that, if it is not coercive, government support should not be a violation of the Constitution.
The conservatives have moved to this position aggressively and further justify their position by identifying a historically “national religion.” Late in the 19th century, you could hear the Court saying, “This is a Christian country.” And then it moved to saying, “It’s a Judeo-Christian country,” and then that became the status quo. And now you have justices saying, “It’s a monotheistic country.” Monotheism is now the buzzword to justify government’s engaging in the two kinds of support that they’re most interested in: public displays and financial support.
To be honest, one cannot claim that there’s a single religious identity. Because of the increasing diversification of religious beliefs in the United States, characterization of a “national” religion becomes more and more abstract. I have no doubt that within 50 years, they will say, “In this country, many people are religious.”. [return to top]
Jamie Raskin is a professor of constitutional law at American University and director of its Program on Law and Government and its Marshall-Brennan Constitutional Literacy Project. He also serves as a Democratic state senator in Maryland. Raskin has authored numerous essays and several books, including Overruling Democracy: The Supreme Court vs. the American People and We the Students.
Any nominee to the Supreme Court worth his or her salt will testify before the Senate Judiciary Committee that personal religious belief is completely irrelevant to his or her work as a Supreme Court justice. Logically speaking, one’s private beliefs about theology really have no bearing on one’s interpretive methodology of the Constitution. Everyone agrees to this proposition, but it is a formal one, and it does not deal with the psychological reality of religion as a parallel internal belief system that figures highly in the justice’s overall intellectual and moral makeup.
The real question is whether a justice’s philosophical approach to religion reflects or mirrors his or her philosophical approach to law, which is what we mean by jurisprudence. To a certain extent, it almost inescapably and inevitably does. The justices who have an authoritarian approach to religion and spiritual life tend to read the Constitution and law as rigidly establishing the structures of governmental power over citizens.
Conversely, justices who tend to side privately, as far as I can tell, with more liberal religious currents and to favor tolerance over dogma also try to read the Constitution as a charter of individual rights and to interpret its structural provisions through the lens of freedom and individual dignity.
The interesting thing is that these general trends in intellectual and moral psychology don’t necessarily track specific religious denominations. One of our great constitutional liberal justices was Catholic: William Brennan. He always placed human dignity and social justice first.
On the other hand, Justice Antonin Scalia, who is also Catholic, has made his “strict constructionist” and doctrinaire religious views about God, the status of the Bible, church hierarchy and even creationism quite clear, both in public pronouncements and between the lines of his decisions. These views parallel his constitutional “originalism” and commitment to statutory language to the absolute exclusion of legislative history and debate. For example, he has dissented from decisions striking down organized prayer in high school football games and graduation ceremonies. Conversely, while the liberals are usually sympathetic to the free exercise claims of minority religionists, like Native Americans, Scalia treats their religious claims as a form of whining and special pleading.
As an intellectual proposition, public officials of any government branch should follow the example of John F. Kennedy, who made the great, classic statement about how public officials should conduct themselves with respect to religion. In that powerful 1960 speech, Kennedy said that the content of his private theological beliefs should be of interest to no one but himself, his family and his church. What matters, he said, was his public faith, and that faith included a belief in an absolute separation of church and state where no church official would ever dictate to public official the content of their political beliefs. Former governor Mitt Romney said the opposite in his failed effort to imitate Kennedy’s speech. Romney went out of his way to profess his personal belief in Jesus Christ as the savior of mankind before giving a diluted endorsement of separation of church and state.
There are, however, some interesting cases where justices actually reference their religion. One of the more shameful invocations was by Justice Felix Frankfurter in West Virginia v. Barnette in 1943, when the Supreme Court found that it violated the First Amendment to force Jehovah’s Witnesses’ children to pledge allegiance to the flag. This important decision occurred in the middle of World War II when Jehovah’s Witnesses were facing serious sanctions and harassment.
But Frankfurter dissented. He began: “One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution....But as judges we are neither Jew nor Gentile, neither Catholic nor Agnostic....I am not justified in writing my private notions of policy into the Constitution....”
Having made the point that religion is inappropriate, he proceeded to argue that West Virginia under the Constitution could coerce minority religious groups to participate in the majority’s political rituals. Frankfurter advertised his religious status to write a decision enshrining the political majority’s power to push around dissenting minorities.
There are people who blame the moral downfall of America on the Supreme Court’s decision in 1962 in Engel v. Vitale that “banned prayer in public schools.” But I always point out that as long as there are pop math quizzes there will be prayer in public schools. What was banned is official prayer led by principals and teachers as part of the public school curriculum. And the Supreme Court in 1980 [Stone v. Graham] said that the Ten Commandments could be taught in school as part of comparative religion classes or in literature classes or even in classes on law, because they have had some influence in the development of law. But they certainly cannot be hung in the classroom to silently promote religions that identify with the Ten Commandments.
In the legislative arena, I once said, “People place their hand on the Bible and swear to uphold the Constitution; they don’t put their hand on the Constitution and swear to uphold the Bible.” I think having a conscious distinction between your public ethos and your private ethos is especially important for justices because they have to uphold, when all else fails, the separation of church and state.
As a state senator I see a lot of confusion in politics about whether we are public actors promoting the common good or public actors promoting the common good and advancing religious belief and worship.
You know, the last refuge of scoundrels isn’t patriotism but religious pandering.
In the judicial field, there can be no confusion about these boundaries. We depend on judges to zealously defend every part of the Constitution, including the separation of church and state, which marked a radical and historic break from centuries of fusion of religious and secular power. We need justices who understand these things. [return to top]
Wendy Webster Williams, a professor of law at Georgetown University, is working on a biography of Justice Ruth Bader Ginsburg. Williams helped draft the 1978 Pregnancy Discrimination Act and the 1993 Family and Medical Leave Act and was a law clerk for Justice Raymond Peters of the California Supreme Court.
I became a young lawyer when Ruth Ginsburg was just getting heavily involved in the litigation of women’s rights cases in the 1970s, and I can’t tell you how impressive she was, not only because she was brilliant, but also a married woman, a mother, and somebody who had experienced considerable discrimination.
She had this balanced outlook that she has carried forward onto the Court. Just to pick one example: The Jewish holidays weren’t observed at the Court when she arrived; she and Justice Stephen Breyer were initially rebuffed when they requested that this change be made. The Court is now closed for major Jewish holidays.
Ginsburg is fully aware that she is a model of how one can be a Jewish justice and a female justice and blaze a trail for others. WASP that I am, I see how she uses her unique bundle of life experiences to inform her understanding of issues involving people with other religions and cultures. This enriches the Court.
I know, for example, that she’s proud that Jews were among the founders of the NAACP. For her, that shows that Jews can identify with discrimination and oppression. It’s not surprising to see that she brings great clarity and sensitivity to cases involving racial inequality and in general, to the interpretation of our Constitution.
In her chambers hangs a Hebrew sign that expresses her Jewish heritage and professional commitment: “Justice, Justice, Shalt Thou Pursue.”
I don’t mean to say that all justices of a particular race, sex, cultural background, or religion will have the same style of judging or reach the same outcomes. For example, today we have five conservative justices who are Catholics, but the late Justice William Brennan, also a Catholic, was one of the great liberal justices on the Supreme Court.
It’s very important that people who are responsible for selecting judges for all our courts pay attention to race, gender, ethnicity, and religion. They should be careful not to fall into a pattern that reflects their beliefs and preferences.
And it should go without saying in this country that no judicial nominee should be excluded from a judgeship because of his or her religion. But at the same time, since the Supreme Court is the court of last resort, a healthy mix of experience, belief and background among the nine justices is most likely over time to ensure fair and just results for our people. [return to top
Laurence H. Tribe is the Carl M. Loeb University Professor at Harvard Law School. His 1978 seminal work, American Constitutional Law, has been published in three editions. He is the coauthor of On Reading the Constitution and The Supreme Court: Trends and Developments, and the author of Abortion: The Clash of Absolutes, Constitutional Choices. Tribe clerked for Supreme Court Justice Potter Stewart and for California Supreme Court Judge Matthew Tobriner.
A justice’s religious affiliation is unlikely in itself to determine that justice’s interpretation of legal and constitutional provisions or his or her approach to generic issues. For example, religion is not likely to affect the relative weight a justice accords the original intent of the framers, cultural evolution, social policy concerns or the structure and implicit ideas contained in the Constitution. Justice William Brennan, for example, was no less a Catholic than Justices Antonin Scalia and Clarence Thomas, and yet his views on most of those issues were diametrically opposed to theirs. And, although Justice Anthony Kennedy differs less dramatically from Scalia and Thomas than did Brennan, his differences from the two of them are likewise stark and important. Yet he, too, is a practicing Catholic.
This isn’t to say, however, that any justice’s philosophy of judging—and approach to important statutory and constitutional controversies—can be successfully divorced from that justice’s overall values, belief systems and world view. A justice’s opinions are influenced directly or indirectly by personal understanding of how legal rules work in his or her life, which will be shaped by that justice’s early life, his or her family upbringing, and formative cultural and social experiences and affiliations.
I’d speculate that we are becoming ever more diverse religiously, as well as ethnically and culturally, and that this diversity generates increasingly deep divisions over the role that religion should play in public life.
It would, however, be a mistake to equate either depth of religious feeling and degree of religious participation, or the belief that religious notions and symbols should be welcomed in public discourse and in the public square, with conservative or right-leaning political and cultural orientation. Historically, we have seen otherwise. The anti-slavery movement was heavily and overtly religious, as have been many of our nation’s anti-war movements. And Barack Obama is manifestly more invested in and open about his religious beliefs and practices than is John McCain. [return to top]
Eugene Volokh is a professor of law at the University of California at Los Angeles (UCLA). He clerked for Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit and Justice Sandra Day O’Connor of the U.S. Supreme Court. Volokh is the founder and co-author of the well-known Volokh Conspiracy blog, which features legal commentaries, and has written numerous law review articles and op-ed articles.
The theology of a Supreme Court justice matters—and it may matter in a way that is influenced by a justice’s religion—but it’s hard to track things beyond that. An example is whether religious schools should be permitted to participate on an equal footing with private, secular and public schools in government funding programs. Such programs are generally thought to have been particularly helpful—or would be particularly helpful if permitted—to Catholic schools, because a disproportionate share of private schools is Catholic, although I think that such funding could be quite helpful to Jewish religious schools and others.
Justice Antonin Scalia—probably the one Supreme Court justice who is most publicly Catholic—has always argued that these kinds of programs are constitutionally permissible. On the other hand, one of their biggest foes, who mandated the discriminatory exclusion of religious schools from these programs, was Justice William Brennan, also a notable Catholic. Did Scalia’s Catholicism affect his judgment about church and state? Maybe. But it may have equally affected Brennan in the other direction.
Likewise with regard to the death penalty: The Catholic Church is one of the most prominent opponents of the death penalty. Brennan and a non-Catholic, Justice Thurgood Marshall, were the only two justices who during their Court tenures consistently held that the death penalty was unconstitutional. Justices Harry Blackmun and John Paul Stevens have recently also expressed views—Blackmun at the end of his tenure—that the death penalty is unsound but they would follow the precedents that have upheld it. On the other hand, Scalia, one of the Court’s most solid proponents of the view that the death penalty is constitutional, has been joined by lots of non-Catholic justices, like William Rehnquist.
The Constitution says that there can’t be religious tests for office, and I think that means that you can’t be prevented from holding a certain office unless, for example, you’re Protestant. But if someone wants to know whether someone’s religion will interfere with this person’s judging obligations, the Constitution does not stand in the way. Political ethics and good sense might lead us to condemn those questions—you might say that in a country where there are many different religious groups, looking closely at a person’s religion is likely to shed more heat than light. Jews, for example, might particularly wonder about that, and say that while in principle it’s legitimate to ask how one’s Jewish religion will affect one’s judging, in practice, it might lead to people dredging up all sorts of attitudes, stereotypes and hostilities toward Jews that would more likely lead to prejudice rather than sound judgment.
You can imagine a justice thinking that the Constitution doesn’t secure a right to abortion. Subconsciously a justice might reason: The Constitution wouldn’t authorize a right to do something horrible, abortion is something horrible because of my religious beliefs; therefore, I think that the Constitution doesn’t secure that right. Many non-Catholics have taken that view, including Justices Byron White and Rehnquist, who to my knowledge were nominally Protestant and not particularly religious. Even a non-religious person could say that the Constitution never says anything about abortion—to the extent it says anything about unanimated rights—and those rights don’t necessarily include a practice that for many decades every state considered to be a crime. We can hypothesize other situations where a judge’s religion might have affected his opinion consciously or subconsciously, but we would find it hard to prove. [return to top]
Jeffrey Toobin is a legal analyst for CNN after seven years with ABC News. He is a staff writer on legal affairs for The New Yorker, and his work for Independent Counsel Lawrence Walsh provided the basis for his first book, Opening Arguments: A Young Lawyer’s First Case—United States v. Oliver North. His most recent book is the 2007 The Nine: Inside the Secret World of the Supreme Court.
I think the fact that there are five Catholics on the Court is of little significance. The Court’s composition has frequently reflected the political and ethnic tensions at large. In the Court’s early days when regional differences were central, it was important to have a southern, a western and a Massachusetts justice. As regional difference disappeared that became less of a fact. There were two justices [William Rehnquist and Sandra Day O’Connor] from Arizona for many years and that was not an important state. Later with the immigration of [southern and eastern] Europeans, ethnic differences became important. You had a Catholic seat and a Jewish seat and presidents felt they had to check that box.
Ethnic and regional differences have gone down and the primary divisions today are political. Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsburg, two Jews, to the Court, not because they were Jewish but because they were moderate liberals like Clinton. George W. Bush nominated Samuel Alito and John Roberts not because of their Catholic religion but because of their politics. They were conservatives like him. Their religion was incidental to the real reason, which was their politics. So I submit that religion does not play a role.
John McCain gave a big speech about what kind of candidate he would appoint. He said very explicitly: a candidate much like John Roberts and Samuel Alito, similarly conservative, similarly interested in overturning Roe v. Wade, opposing affirmative action and supporting the death penalty. Barack Obama hasn’t said much but his views on the Constitution are pretty well known. I suspect he would appoint someone like Breyer or Ginsburg. [return to top]
Interviews conducted by Joan Alpert, Mandy Katz and Nadine Epstein.
Research by Mark Abramson, Inga Feldi, Helen Grove, Laurel Lachowiez and Benjamin Schuman-Stoler.
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